Madhya Pradesh High Court
Madan Lal vs Govind Prasad on 8 April, 2022
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 8th OF APRIL, 2022
SECOND APPEAL No. 30 of 2011
Between:-
1. MADAN LAL S/O LATE SHRI BHURELAL, AGED
ABOUT 50 YEARS.
2. SOHAN LAL, S/O LATE SHRI BHURELAL, AGED
ABOUT 48 YEARS.
3. RAVINDRA KUMAR, S/O LATE SHRI BHURELAL,
AGED ABOUT 46 YEARS.
ALL R/O. VILLAGE MATKULI, TEH. PIPARIYA,
DISTT. HOSHANGABAD, M.P.
.....APPELLANT
(BY SHRI P.P. CHATURVEDI, ADVOCATE)
AND
1. GOVIND PRASAD, S/O LATE SHRI BABULAL
JAISWAL, AGED ABOUT 56 YEARS, R/O. GRAM
MATKULI, TEH. PIPARIYA, DISTRICT
HOSHANGABAD (M.P.)
2. THE STATE OF MADHYA PRADESH THROUGH
DISTRICT COLLECTOR, HOSHANGABAD, M.P.
3. INCHARGE POLICE CHOWKI MATKULI, TEH.
PIPARIYA, DISTT. HOSHANGABAD, M.P.
.....RESPONDENTS
Th is appeal coming on for admission this day, JUSTICE DWARKA
DHISH BANSAL passed the following:
ORDER
This Second Appeal has been filed by the appellants/plaintiffs challenging
the judgment and decree dated 16.09.2010, passed by Additional District Judge
Pipariya, District Hoshangabad in Regular Civil Appeal No.39-A/2009, confirming
the judgment and decree dated 30.04.2007 passed by learned Civil Judge Class-2
Signature Not
SAN
Verified Pipariya, District Hoshangabad in Civil Suit No.7-A/2005, whereby suit filed by the
Digitally signed by
SWETA SAHU
appellants/plaintiffs for declaration of title, permanent injunction and after
Date: 2022.04.12
17:08:09 IST
amendment for mandatory injunction has been dismissed.
2. The plaintiffs instituted the suit originally for declaration of title and
permanent injunction claiming themselves to be owner of the suit property on the
premise of an unregistered deed of sale dated 02.11.1944 allegedly executed in
favour of plaintiffs' father-Bhurelal and accordingly claimed themselves to be
owner and in possession. During pendency of suit the plaintiffs prayed for and
were granted permission to amend the plaint seeking relief of mandatory injunction
to the effect that the defendant Nos.1 to 3 be directed to raise construction of
house and give it to the plaintiffs. On interalia allegations the plaintiffs prayed for
decree in their favour.
3. The defendant Nos.1 and 2 filed their separate written statements and
taking several objections regarding title and possession of the plaintiffs over the
suit land claimed themselves to be in possession of the suit property. However, the
defendant No.3 did not file any written statement and was proceeded ex-parte.
4. Learned counsel for the appellants submits that the learned courts have
wrongly discarded the evidence adduced by the plaintiffs with regard to title and
possession. He further submits that on the basis of document of sale (Exhibit P-1)
including other documents it is proved that the plaintiffs are owner and in
possession of the suit property and further submits that the defendants have totally
failed to prove their title and possession over the property in question. The counsel
further submits that the findings recorded by the courts below are perverse and not
sustainable and the Second Appeal deserves to be admitted.
5. Heard learned counsel for the appellant and perused the record.
6. It is clear from the alleged document of sale (Exhibit P-1) that it is a
document written on a letter head of 'Seth Girjacharan Jaiswal & Sons', which is
dated 02.11.1944 whereby the property mentioned therein is stated to have been
sold for consideration of Rs.301/- (Rs. Three Hundred and One) which does not
contain any fact regarding delivery of possession and it is in the form of a receipt.
Learned both the courts below while deciding the issue No.1 and 2 have taken into
consideration this document and have come to conclusion that the plaintiffs are
neither owner nor in possession of the property in question and have also held that
this document (Exhibit P-1) is not admissible in evidence for the purpose of
transfer of title, however the learned courts have considered it for collateral
purposes.
7. As has been provided under Section 54 of the Transfer of Property Act,
it is well settled that document of sale of the value more than Rs.100/- is
compulsorily required to be registered. Certainly the document (Exhibit P-1) is
neither properly stamped, nor is registered, therefore, learned both the courts have
rightly held it to be inadmissible in evidence. In the case of Gopal Das Choubey
vs. Hari Prasad Choubey, decided by Gwalior Bench of this Court in S.A.
No.351/2001 on 07.11.2019, this Court in paragraphs 13 and 14 has held as
under :-
13. It is submitted by the counsel for the appellant that the value of the property might
be less than Rs. 100/- and had it been a case of oral transfer by transfer of possession, then the
registration was not necessary. However, since the transaction has been reduced to writing,
therefore, it is required to be registered and contents are required to be proved. To buttress his
contention, counsel for the appellant has relied upon the judgment passed by the Rajasthan High
Court in the case of Shesh Mal and others Vs. Harak Chand and others reported in AIR 1983
RAJ 109 and submitted that the irrespective of the value of the instrument, it is required to be
registered. Counsel for the appellant has also relied upon the judgment passed by the Supreme
Court in the case of Brijvasilal Vs. Abdul Haji reported in (2001) 9 SCC 367.
14. Section 54 of the Transfer of Property Act as under:-
“54. “Sale†defined.â€"‘‘Sale†is a transfer of ownership in
exchange for a price paid or promised or part-paid and part-promised.
Sale how made.â€"Such transfer, in the case of tangible immoveable property of
the value of one hundred rupees and upwards, or in the case of a reversion or other
intangible thing, can be made only by a registered instrument. In the case of tangible
immoveable property of a value less than one hundred rupees, such transfer may be made
either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the
buyer, or such person as he directs, in possession of the property.
Contract for sale.â€"A contract for the sale of immoveable property is a contract
that a sale of such property shall take place on terms settled between the parties. It does
not, of itself, create any interest in or charge on such property.â€
Therefore, from the plain reading of the definition of the sale, where the value of the
tangible immovable property is less than Rs.100/- then such transfer can be made either by
registered instrument or by delivery of the property.
8. While considering the issue No.1 and 2 the learned courts have also
recorded specific finding regarding possession and held that the plaintiffs are not in
possession of the disputed property, but the defendants are in possession of the
same. It is pertinent to mention here that the finding of possession recorded by
courts below is pure finding of fact and is not assailable in the Second Appeal as
has been held by Hon'ble Apex Court in the case of Mohan Lal vs. Nihal Singh
reported in (2001) 8 SCC 584.
9. In view of the aforesaid no substantial question of law arises in the
present Second Appeal and the same is hereby dismissed, without any order as to
costs.
(DWARKA DHISH BANSAL)
JUDGE
ss
